Dominique M. v. Department of Child Safety

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

DOMINIQUE M., Appellant,

v.

DEPARTMENT OF CHILD SAFETY, J.M., A.M., Appellees.

No. 1 CA-JV 15-0032

FILED 7-12-2016

Appeal from the Superior Court in Maricopa County

No. JD18130

The Honorable Daniel G. Martin, Judge

AFFIRMED

COUNSEL

Law Office of Anne M. Williams, P.C., Mesa

By Anne M. Williams

Counsel for Appellant

Arizona Attorney General’s Office, Mesa

By Nicholas Chapman-Hushek

Counsel for Appellee Department of Child Safety

DOMINIQUE M. v. DCS, et al.

Opinion of the Court

OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which

Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.

W I N T H R O P, Judge:

¶1 Dominique M. (“Mother”) appeals the juvenile court’s order

severing her parental rights to J.M. and A.M. (collectively “the Children”).

Mother does not contest the finding of statutory grounds for severance, but

contends the juvenile court erred in concluding severance was in the

Children’s best interests. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 J.M. is a male child born in 2010, and A.M. is a female child

born in 2013. Both came into care of the Department of Child Safety

(“DCS”) due to domestic violence, substance abuse, Mother’s mental

illness, and the then-ongoing severance proceedings of Mother’s two other

children. The trial court found J.M. and A.M. dependent as to Mother in

August 2012 and September 2013, respectively.

¶3 DCS offered Mother an array of services and assistance

designed to promote reunification, e.g., substance rehabilitation services,

parental aide services, mental health treatment and counseling, and

transportation. Mother, however, failed to fully comply and remained

unable to discharge her parental responsibilities. She was still engaged in

domestic violence. Mother also did not regularly participate in drug testing

and, when she participated, she did not consistently test negative for illegal

substances. Mother refused to take medication prescribed for her

psychiatric and psychological conditions, instead relying on Benadryl and

marijuana, for which she did not hold a valid medical marijuana card.

¶4 In September 2013, the Children’s guardian ad litem moved to

sever the parental relationship between Mother and the Children on the

grounds of willful abuse, mental illness, chronic abuse of dangerous drugs,

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DOMINIQUE M. v. DCS, et al.

Opinion of the Court

prior severance of parental rights for the same cause,1 cumulative fifteen-

month out-of-home placement, cumulative six-month out-of-home

placement (for A.M. only), and asserted severance would serve the best

interests of the Children. See Ariz. Rev. Stat. (“A.R.S.”) § 8-533(B)(2), (3),

(8)(b)-(c), (10).2 After an adjudication, the juvenile court found DCS had

met its burden of proving the various statutory grounds and that severing

Mother’s parental rights was in the Children’s best interests.3

¶5 Mother timely appealed. We have appellate jurisdiction

pursuant to the Arizona Constitution, Article 6, Section 9; A.R.S. § 8-235(A);

and Rule 103(A) of the Arizona Rules of Procedure for the Juvenile Court.

ANALYSIS

¶6 Mother appeals only the juvenile court’s finding that

severance of her parental rights was in the Children’s best interests. On

appeal, we do not reweigh evidence and will affirm the juvenile court’s

factual findings if supported by reasonable evidence. Denise R. v. Ariz. Dep’t

of Econ. Sec., 221 Ariz. 92, 93-94, ¶ 4, 210 P.3d 1263, 1264-65 (App. 2009); Jesus

M. v. Ariz. Dep’t of Econ. Sec., 203 Ariz. 278, 282, ¶ 12, 53 P.3d 203, 207 (App.

2002).

¶7 Parental rights in the care, custody, and management of their

children are fundamental, but not absolute. Kent K. v. Bobby M., 210 Ariz.

279, 284, ¶ 24, 110 P.3d 1013, 1018 (2005) (citing Santosky v. Kramer, 455 U.S.

745, 753 (1982); Michael J. v. Ariz. Dep’t of Econ. Sec., 196 Ariz. 246, 248,

¶¶ 11-12, 995 P.2d 682, 684 (2000)). Although fundamental, parental rights

are not inviolate; a court may still sever those rights if it finds clear and

convincing evidence of one of the statutory grounds for severance, and also

finds by a preponderance of the evidence that severance is in the best

1 Mother’s rights to her two other children were previously severed in

a separate proceeding less than two years ago; the ground asserted in that

instance was cumulative fifteen-month out-of-home placement.

2 We cite the current version of the applicable statutes unless revisions

material to this opinion have occurred since the events in question.

3 On the motion of the guardian ad litem, the juvenile court also

severed the Children’s fathers’ parental rights. This court dismissed the

fathers’ separate appeals after their attorneys avowed they had reviewed

the entire record but found no non-frivolous issue to raise.

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DOMINIQUE M. v. DCS, et al.

Opinion of the Court

interests of the children. See A.R.S. §§ 8-533(B), -537(B); Kent K., 210 Ariz. at

281-82, 288, ¶¶ 7, 41, 110 P.3d at 1015-16, 1022.

¶8 In proving severance is in the children’s best interests, DCS

must show either that severance affirmatively benefits the children (such as

showing they are adoptable or more stable in an existing placement), or

eliminates a detriment to the children if the parent-child relationship is not

severed. Maricopa Cty. Juv. Action No. JS-500274, 167 Ariz. 1, 6-7, 804 P.2d

730, 735-36 (1990); Ariz. Dep’t of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334,

¶ 6, 100 P.3d 943, 945 (App. 2004).

¶9 On appeal, Mother contends DCS failed to show the benefits

of severance, arguing that she and the Children were bonded; that she had

regularly visited the Children during the pendency of the case, and brought

food, clothing, money, and gifts to the visits; and that DCS lacked an

identified adoptive plan for J.M. Even assuming arguendo the record

supports these contentions, Mother is in essence asking us to reweigh the

evidence presented to the juvenile court. We decline to do so.

¶10 Reasonable evidence in the record supports the juvenile

court’s express finding that severance was in the best interests of the

Children. The juvenile court found that A.M.’s prospective adoptive

placement would meet her needs and provide stability, and that J.M. was

adoptable. Severance would make the Children eligible for adoption. At

the same time, the juvenile court found that, if the parental relationship

continued, the Children would remain at significant risk for abuse and

neglect. These findings demonstrate both affirmative benefits from

severance and the elimination of potential detriments if the parent-child

relationship is not severed. See JS-500274, 167 Ariz. at 6, 804 P.2d at 735

(recognizing that the existence of an adoptive plan or being freed from an

abusive parent shows a benefit).

¶11 Mother contends severing her relationship with J.M. is not in

his best interests because DCS currently does not have an adoptive plan for

him and he would be “orphaned” after the severance. Mother, however,

does not deny that J.M. is adoptable, and it is well established that

“adoptable” status is a benefit that may, in consideration with other factors,

support the “best interests” finding. See Maricopa Cty. Juv. Action No. JS-

501904, 180 Ariz. 348, 352, 884 P.2d 234, 238 (App. 1994) (stating the

government need not show an adoption plan existed, but instead must

show the child is adoptable). Moreover, even without an identified

adoptive placement waiting, the record shows the Children’s needs were

being met in their current placements, which also supports the juvenile

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DOMINIQUE M. v. DCS, et al.

Opinion of the Court

court’s best interests finding. See Audra T. v. Ariz. Dep’t of Econ. Sec., 194

Ariz. 376, 377, ¶ 5, 982 P.2d 1290, 1291 (App. 1998) (stating one of the factors

favoring severance is that the current placement is meeting the child’s

needs). In addition, Mother does not contest any of the statutory grounds

for severance. Absent severance, the continued presence of the conceded

statutory grounds for severance also may, in certain cases, negatively affect

the children. Bennigno R. v. Ariz. Dep’t of Econ. Sec., 233 Ariz. 345, 350, ¶ 23,

312 P.3d 861, 866 (App. 2013); Maricopa Cty. Juv. Action No. JS-6831, 155 Ariz.

556, 559, 748 P.2d 785, 788 (App. 1988). All of these factors demonstrate the

benefits of severance or the detriment of a continued parental relationship,

and more than adequately support the conclusion that reasonable evidence

supports the trial court’s finding of best interests.

¶12 Finally, Mother repeatedly states she and the Children are

bonded and argues that continuing her relationship with the Children is

critical to maintaining such bond, which would in her opinion be in their

best interests. The existence and effect of a bonded relationship between a

biological parent and a child, although a factor to consider, is not

dispositive in addressing best interests. Bennigno R., 233 Ariz. at 351, ¶ 30,

312 P.3d at 867. Even in the face of such a bond, the juvenile court is

required to evaluate the totality of circumstances and determine whether

severance is in the best interests of the children. Id. at 351-52, ¶ 31, 312 P.3d

at 867-68 (citing cases). Here, the juvenile court did consider the totality of

the circumstances and, as concluded above, reasonable evidence in the

record supports the juvenile court’s finding of best interests.

CONCLUSION

¶13 For the foregoing reasons, we affirm the juvenile court’s order

severing Mother’s parental rights.

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